Thirty Years on, Still No Justice for India's Sikhs

Schona Jolly
Human Rights, Equalities and Employment Lawyer, and Writer. Based in London, working in the UK and internationally

Thirty years after the organized murder, rape and displacement of thousands of India's Sikhs, both in Delhi and beyond, following the assassination of Indira Gandhi by her Sikh bodyguards in 1984, India's Sikhs are still waiting for justice.

The country's legal and political systems have failed to produce any convictions against those who orchestrated the campaign, nor a single conviction against the police officers whose central role in the violence has been well documented. The failure of accountability towards those whose lives were shattered by the violence has been both extreme and blatant. Across the world, in Latin America and South Africa, prosecutions are taking place and attempts at truth and reconciliation have been made to assuage the past. Yet, in the world's largest democracy, one of the most brutal episodes in its modern history languishes almost unacknowledged, alongside its victims.

The impunity enjoyed by the perpetrators has been compounded by a silence which surrounds 1984, aided by the lack of social media and global rolling television cameras at the time, and a silence in which there has been widespread complicity by politicians, judges and the media. The Congress party, and many others, wonder why everyone cannot now just move on. Alongside the silence, itself partly borne of incomprehension by the victims that this happened at all, has emerged a naked distortion of language that seeks to redesign the facts, or blame the victims themselves.

"When a big tree falls, it's only natural that the earth around it shakes".

With those chilling words, Rajiv Gandhi initiated the twisting insidious use of language that would seek to build and create a social myth in India that the mass violence against Sikhs between 31st October and 5th November 1984 was the "involuntary", spontaneous outpouring of grief in response to the murder of the Prime Minister. But whilst murder convictions were quickly meted out to her assassins, the architects and key perpetrators of 1984's communal pogroms remain at large. How has this happened, and has language played a part?

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Ten government commissions and committees later, India has perfected the British art of throwing a story to the wind by the creation of a Commission of Inquiry. Thousands of affidavits have been filed, although most seemingly discounted in favour of the presumption of innocence of the powerful. Both the Mishra and the Nanavati Commissions in particular, in 1987 and 2005 respectively, recorded evidential findings, including widespread lapses by the police, which should have engendered a powerful legal response.

Justice Nanavati found that from the morning of the 1st November 1984, the nature and intensity of the violence changed to a systematic carnage. It is worth setting out some of his conclusions in full:

"There is evidence to show that at some places the mobs indulging in violent attacks had come in DTC buses or vehicles. They either came armed with weapons and inflammable materials like kerosene, petrol and some white powder or were supplied with such materials soon after they were taken to the localities where the Sikhs were to be attacked. There is also evidence on record to show that on 31-10-84 either meetings were held or the persons who could organize attacks were contacted and were given instructions to kill Sikhs and loot their houses and shops. The attacks were made in a systematic manner and without much fear of the police; almost suggesting that they were assured that they would not be harmed while committing those acts and even hereafter. Male members of the Sikh community were taken out of their houses. They were beaten first and then burnt alive in a systematic manner. In some cases tyres were put around their necks and then they were set on fire by pouring kerosene or petrol over them. In some cases white inflammable powder was thrown on them which immediately caught fire thereafter. This was a common pattern which was followed by the big mobs which had played havoc in certain areas. The shops were identified, looted and then burnt. Thus what had initially started, as an angry outburst became an organized carnage."

Those findings speak for themselves. But having prepared the groundwork, the Nanavati Commission, like those before it, simply refused to draw the obvious conclusions and conduct the next stage of investigation which could have provided answers to the questions that remain. The failure to ask those questions illustrates the scale of the official attempt to maintain an illusion about the true cause of the 1984 violence.

Here are just a few of those questions: Who organised those meetings on the 31st October? Who permitted and organised the use of official transportation? Who provided and distributed the use of government voter-lists in order to identify Sikh homes and businesses? Were there local gurdwara lists distributed that were registered to identify Sikh residents in particular (as recently emerged evidence suggests)? Who provided, distributed and devised the strategy that led to 'necklacing' Sikh men, and where did the white inflammable powder come from? What, too, of the women? Why the silence surrounding the mass rape of women in 1984 quite deliberately employed as a tool of terror? The list goes on, unanswered.

Some of the most pressing questions relate to the finding that there was no fear of the police. In order to determine why there was no fear of the police, it was incumbent on the Commissions to find out where the orders had come from? Both Commissions accepted that there was a delay in calling the army out to maintain law and order. Neither sought to establish the orders, personnel and causal chronology relating to that delay. They failed to investigate the chronology and orders relating to the well-established pattern in which Sikh men were prevented from defending themselves and so on. In circumstances where the evidence clearly demonstrated police complicity, the explanation that officers had retired by the time of the recommendations, for example, and thus were beyond reproach, is farcical. Moreover, given the testimony of thousands of witnesses as to the involvement of the police, which was accepted by Mishra and Nanavati in large part, it remains entirely implausible that all of the officers have been exonerated. Hopeless, embarrassing excuses have been piled up to exonerate the police officers involved. Genocide, crimes against humanity and murder are not subject to limitation constraints.

One explanation, which belies and suggests complicity at the highest level, may be provided by an analysis of the language used in both the Mishra and Nanavati reports. Justice Nanavati was a Supreme Court judge. Justice. Mishra subsequently went on to be promoted to the Supreme Court. There is no credible excuse for their laxity in legal analysis, language or terms of culpability. Ultimately, the choice of wording in Nanavati's conclusions and recommendations provided a get-out clause to the government of the day, eager to bury the story.

Reverting to the findings of both Commissions that that there had been a delay in calling out the army to restore order. There is no proper explanation for his failure to investigate that critical finding further. The victims of unlawful killing have the right to an effective investigation. Since the police were plainly unable to investigate themselves, it was incumbent on the Commissions to carry out those necessary investigations. Who was responsible for that delay? Who had effective control of the situation on the ground? Were reasonable and necessary measures were taken to prevent crimes taking place? The evidence Nanavati heard clearly indicated that there had been omissions to act which ought to have led to criminal liability. Nanavati's failure to use the legal language of command responsibility for these high level omissions is unsustainable.

Similarly, his conclusions on the involvement of Congress politicians in the execution of the violence are perverse. They do not stand up to scrutiny. Nanavati, the Supreme Court Justice, inexplicably reverts to vague language which bears no legal meaning. He found, for example, that found that there was "credible evidence against Shri Jagdish Tytler", a Congress MP, "to the effect that very probably he had a hand in organizing attacks on Sikhs." Any lawyer will know that such a statement makes no legal sense. The sloppiness of language cannot be accidental, particularly given the strength of the witness testimony against Tytler. The language appears designed to ensure that no direct consequences arise as a result of this Commission's findings. In a similar vein, Nanavati disbelieved another MP indicted directly by witness testimony, Kamal Nath, but yet chose to conclude that "it would not be proper to come to the conclusion that Shri Kamal Nath had in any manner instigated the mob". Today, Kamal Nath is the Pro-Tem Speaker of the Lok Sabha, India's Parliament. Nanavati arrived at similarly unsustainable conclusions in respect of at least two other senior politicians, Sajjan Kumar and Bhagat.

It is unconvincing to attribute the language used to carelessness, given the level of Inquiry. Nanavati, for all his findings of a systematic, organised carnage, continued to refer to the violence as "riots". In lore, 1984 has become known worldwide as the anti-Sikh riots. But if these were indeed riots on 31st October, Nanavati himself found that they had none of the spontaneous associations of riots by the 1st November. Many have labelled the violence 'pogroms', a term originally used to describe the organised massacres of Jews. Others have called for 1984 to be relabelled as "genocide", now a politically loaded term which governments and civil society organisations are loathe to use.

The definition of genocide, according to the Geneva Convention which India has ratified, includes killing members of an ethnic or religious group, or causing serious bodily or mental harm (which includes rape and sexual violence) to members of an ethnic group with intent to destroy that group, in whole or in part. An individual criminal may be guilty of genocide even if he kills only one person, as long as he knew he was participating in a larger plan to destroy the group.

The evidence before Nanavati enabled him to draw conclusions, at least factually, that there had been conspiracy and/or attempts to commit genocide, direct and public incitement to the same as well as conspiracy. Indeed, he starts his conclusions with the observation that "there was a desire on the part of some persons to teach a lesson to the Sikhs." At the very least, there ought to have been factual and legal conclusions on murder, and conspiracy to commit murder, in accordance with the Indian Penal Code, and Constitution. Language matters. It procures convictions. It prevents denial. It permits the lengthy process of memorialisation to begin by providing an aide to understanding.

Last month, Indian journalist Hartosh Singh Bal published a brilliant essay in which he asserts new indirect evidence suggesting the orders for the violence came from the Member of Parliament Arun Nehru, a cousin and confidante of Indira Gandhi's son and successor Rajiv. This connection has long been the subject of suspicion and rumour. When Bal's material is read alongside that published by the Mishra and Nanavati Commissions, it is clear that a fully effective and meaningful investigation could and would have revealed far more information relating to the architects of the violence. Everything lay, or lies, in the question of political will to seek justice.

The language of the law eventually filters down to society. The State, through government, parliament and the courts, is expected to set the standard by which society operates. The theory is that what is unacceptable in law will eventually become unacceptable in society. Where 'having a hand in murder' is tolerated casually by a Supreme Court Justice, instead of indicted formally as murder or conspiracy to murder, society knows that communal violence will be tolerated by the law. The perpetrators of violence against this decade's unpopular minority are protected by the reality that the last lot wander free. India's newspapers and politicians still refer to the violence as "riots". Given the official findings of systematic and organised carnage, the terminology itself has become a tool of denial and oppression.

Today, India cannot say that she can secure justice for any minority, or indeed provide redress and solutions for communal violence. What happened in 1984 - a one-sided, provoked and premeditated attack on a particular community, with police and political complicity in the quite deliberate failures to investigate - has happened again, in Gujarat and Muzafarnagar and will likely happen again elsewhere in India, towards whoever happens to be the unpopular minority of the day, at least at some scale or capacity. India has failed to learn the lessons of 1984 which a proper inquiry, and genuine attempts at accountability would have brought. A previous Communal Violence Bill went nowhere. Cases have been closed by the police in a farcical manner. Prosecutions have failed as one witness after another has been allegedly intimidated or threatened. High-level individuals implicated by credible evidence have prospered or been promoted under successive Congress governments. Witnesses and perpetrators alike have died. The stain of communal violence lingers on. And still there is no justice for the victims of 1984. In fact, there is not even a memorial. Whole communities flounder, both inside and outside New Delhi. Mass graves have been found in Haryana. Still. The language of moving on is mouthed without any attempt at accountability.

Human Rights Watch this week have called for a new time-bound investigation and further legal measures in line with international standards, including specific measures aimed at preventing and redressing communal violence. Amnesty International has garnered massive domestic support for a new investigation. The current Prime Minister Modi, by way of political spat with Rahul Gandhi last year publicly asked why there have been no convictions relating to the Sikh genocide. Whether he now dares or is willing to require his government to take steps against Congress leaders and high level police officials when he himself stands accused by many of complicity in the 2002 Gujarat massacres remains rhetorical.

After thirty years of denial, one has to question India's capability of resolving this alone? Surrounded by Bangladesh, whose own 1971 ghosts are being tried by a tribunal that is failing to meet the most basic fair trial standards, and a Sri Lankan government determined to keep the UN out in respect of its own genocidal atrocities, there seems little hope that international pressure will even find its way to New Delhi's open-for-business door. Western nations are clamouring, even now, for lucrative trade contracts with India, and there can be no mistake that trade is raised high above human rights in the corridors of power. In order for that to change, there needs to be both domestic and external pressure. There may be scope for other international mechanisms or inquiries. Wholesale changes to the law and policing culture are required urgently.

But if the language surrounding 1984 is not changed, then India herself cannot change. When that big tree fell, someone chose to shake the earth, someone arranged to bus in mobs to trample on that earth and douse it with kerosene, white powder and blood. Someone chose not to call in the army to maintain law and order. Someone then chose not to investigate it, again, and again, and again.